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ELRCPartially AllowedMemorandum of Appeal filed 2 March 2022 (record not numbered in judgment)

Ashiono v Majid & 2 others (Appeal E029 of 2022) [2025] KEELRC 2512 (KLR)

Employment and Labour Relations Court
25 September 2025
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a redundant employee over Kshs 691,000 extra because his employer kept no written records or payslips.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Meru against a judgment of the Principal Magistrate delivered on 26 November 2021, which found that the 3rd Respondent, Anwar Majid, unfairly terminated the employment of the Appellant, Vincent Makula Ashiono, on grounds of redundancy and awarded him compensation of Kshs 117,600, earned wages of Kshs 12,438.50, pay in lieu of notice of Kshs 29,400, plus interest and costs, and a certificate of service. The Appellant appealed on six grounds, contending the magistrate erred in failing to award salary for July and August 2018, redundancy notice, house allowance, annual leave and severance pay. Applying the established role of a first appellate court, the Court re-evaluated the evidence. It found the Appellant's testimony on unpaid July and August 2018 wages unrebutted and, in light of sections 20 and 10(7) of the Employment Act, allowed Kshs 58,800. It held that an employee separated on redundancy is entitled only to notice pay under section 40(1)(c), not also section 35(1), as double payment would amount to unjust enrichment. House allowance of Kshs 432,180 was allowed because the contract was never reduced into writing and sections 10(7) and 31(2) favoured the Appellant. Severance pay of Kshs 156,046 was awarded under section 40(1)(g). Annual leave was allowed but limited by section 28(4) to Kshs 44,100 for the last 18 months. Service pay was refused for lack of foundation. The appeal was allowed with additional awards totalling Kshs 691,126, and no order was made on the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Principal Magistrate erred in failing to award salary for July and August 2018
  2. 2.Whether the Appellant was entitled to one month's redundancy notice under section 40(1)(c) of the Employment Act in addition to notice pay under section 35(1)
  3. 3.Whether the claim for house allowance was proved
  4. 4.Whether the Appellant proved entitlement to service pay
  5. 5.Whether the Appellant was entitled to commuted annual leave pay
  6. 6.Whether the Appellant was entitled to severance pay for unprocedural redundancy

Key legal issues

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01

Unpaid wages for July and August 2018

Holding

The trial magistrate erred in not awarding the claimed Kshs 58,800/- since the Appellant's unrebutted testimony stood against the employer's failure to produce itemised pay statements

Reasoning

Section 20 of the Employment Act obliges an employer to issue an itemised pay statement and section 10(7) places the burden regarding employment records on the employer. The Appellant testified, including in cross-examination, that he was not paid wages for July and August 2018, and the Respondents led no evidence to rebut this. The Respondents also did not produce the statutory pay statements. The Court therefore found errors of fact and law and allowed the head of claim.

p. 3
02

Redundancy notice pay

Holding

An employee separated on redundancy is entitled only to notice pay under section 40(1)(c); awarding notice under both section 35(1) and section 40(1)(c) would be double payment

Reasoning

The parties acknowledged the employment ended by redundancy. The Appellant argued for notice under both section 35(1) and section 40(1)(c). The Court held that the Act does not envisage double payment of notice, which would amount to unjust enrichment, and that an employee leaving on redundancy is entitled only to the section 40(1)(c) notice pay. The trial magistrate's award of one month's notice was left undisturbed on this basis.

p. 3
03

House allowance

Holding

The claim succeeded because the Respondents did not reduce the contract into writing or provide accommodation, and sections 10(7) and 31(2) favoured the Appellant

Reasoning

Section 9 required a written contract in the circumstances of this about-8-year employment, and section 31 obliged the employer to provide accommodation or an allowance. The Respondents claimed the wage was consolidated but had not reduced the contract into writing with a consolidation provision. In light of sections 10(7) and 31(2), the magistrate erred in disallowing the claim, and the Respondents did not interrogate the computations. The full Kshs 432,180/- was allowed.

p. 4
04

Severance pay

Holding

Severance pay of Kshs 156,046/- was due under section 40(1)(g) since separation was on account of redundancy

Reasoning

It was common ground in the pleadings and evidence that the Appellant separated from the Respondents on account of redundancy. Section 40(1)(g) statutorily entitles an employee so separated to severance pay. The Appellant claimed Kshs 156,046/-. The Court held the trial magistrate fell into an error of law in not allowing the head of claim and allowed it.

p. 4
05

Annual leave

Holding

Commuted leave pay was allowed but limited by section 28(4) to leave accrued in the last 18 months, quantified at Kshs 44,100/-

Reasoning

The Appellant gave unrebutted testimony that he never took annual leave, and the Respondents produced none of the employment records contemplated by sections 10(3)(a)(i), 10(7) and 74. The magistrate therefore erred in rejecting the head of claim. However, section 28(4) circumscribes how much leave may be carried forward, limiting entitlement to commuted leave pay for the last 18 months, equating to one and a half months' salary.

p. 4

Legal principles established

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  • On a first appeal the court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • An employee terminated on redundancy is entitled to notice pay under section 40(1)(c) of the Employment Act only, not also section 35(1) notice pay
  • Where an employer fails to produce records such as pay statements, leave records and written contracts required by the Employment Act, the court may act on the unrebutted testimony of the employee

Court orders

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  1. 1.Appeal allowed in addition to the awards by the Principal Magistrate
  2. 2.July/August 2018 wages awarded: Kshs 58,800/-
  3. 3.House allowance awarded: Kshs 432,180/-
  4. 4.Severance pay awarded: Kshs 156,046/-
  5. 5.Accrued leave awarded: Kshs 44,100/-
  6. 6.Total additional award of Kshs 691,126/-
  7. 7.No order on costs of the Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate in an employment claim (leave to appeal having been secured)

Relief refused

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Service pay

The Appellant had already been awarded severance pay and laid no evidential or legal foundation for service pay

p. 4

Notice pay under both section 35(1) and section 40(1)(c) of the Employment Act

Awarding both would amount to double payment and unjust enrichment; only section 40(1)(c) redundancy notice applies

p. 3

Costs

No order on costs of the Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Arising from the foregoing, the Court allows the appeal in the following terms (in addition to the awards by the Principal Magistrate).
p. 4Disposition - appeal allowed
July/August 2018 wages Kshs 58,800/-
p. 4Final orders - wages award
House allowance Kshs 432,180/-
p. 4Final orders - house allowance award
Severance pay Kshs 156,046/-
p. 4Final orders - severance award
Accrued leave Kshs 44,100/-
p. 4Final orders - accrued leave award
No order on costs of the Appeal.
p. 5Costs
The Act does not envisage double payment of notice; otherwise, that would amount to unjust enrichment.
p. 3Redundancy notice - no double payment
the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
p. 2Role of first appellate court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ashiono v Majid & 2 others (Appeal E029 of 2022) [2025] KEELRC 2512 (KLR)", Case Analysis (2025). Memorandum of Appeal filed 2 March 2022 (record not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2512/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.